Center for Human Rights and Constitutional Law
The Center for Human Rights and Constitutional Law Foundation serves as class counsel for all apprehended unaccompanied minors in the US, pursuant to nationwide settlements reached in two major cases: Perez-Olano v. Johnson and Flores v. Reno. More information, resources, and copies of the settlements are available below.
Perez-Olano, et al. v. Holder, et al., (Case No. CV 05-3604, in U.S. District Court for the Central District of California)
BackgroundIn this class-action, the Center for Human Rights and Constitutional Law ("Center") challenged certain administrative policies and practices that blocked abused, abandoned, and neglected youth from receiving lawful immigration status as “special immigrant juveniles” (SIJs). Pursuant to 8 U.S.C. § 1101(a)(27)(J) youth whom a state juvenile court declares dependent on account of abuse, abandonment, or neglect may petition the U.S. Immigration & Citizenship Services (CIS)—a bureau of the Department of Homeland Security (DHS)—to classify them as SIJs. If so classified, they are eligible to become lawful permanent residents (LPRs) of the United States. 8 U.S.C. § 1255. These provisions give effect to Congress’s determination that abused, abandoned or neglected youth who have no parents fit and available to care for them should be given a chance to live safe and productive lives in the United States.
Perez-Olano SettlementThe Final Perez-Olano Settlement Agreement, in effect from December 14, 2010, significantly changed consent issues for SIJS cases. As a result, the settlement bars the Department of Homeland Security and its subordinate agencies, U.S. Citizenship & Immigration Services (CIS) and Immigration & Customs Enforcement (ICE), from blocking abused, abandoned and neglected children's access to lawful status as Special Immigrant Juveniles (SIJ) by (1) demanding that they obtain the consent of the federal government before seeking the protection of state juvenile courts, or (2) by declaring them ineligible for SIJ merely because they turn 18 before filing for SIJ benefits.
The Perez-Olano Settlement Agreement permits children whose I-360 or I-485 applications were denied or revoked after May 13, 2005 to file a motion to reopen. In accordance with the Settlement Agreement, USCIS lays out the circumstances under which a motion to reopen will be granted in this policy memorandum. A motion to reopen should be granted if the child otherwise meets the eligibility criteria for SIJS, the child filed for SIJS or SIJS based adjustment of status on or after May 13, 2005 and the I-360 was denied or revoked for one of the following three reasons:
(1) The child turned 21 after the I-360 was filed but prior to adjudication of the I-360 or the I-485; or
(2) The child’s dependency order was valid at the time the I-360 was filed but was terminated based on the child’s age prior to adjudication of the I-360 or the I-485; or
(3) The child was in custody and did not receive a grant of specific consent before seeking state court jurisdiction and the state court order did not address the child’s custody status.
2014 Motion to Enforce the Settlement
Among the Settlement’s benefits is protection against applicants’ “aging-out” of eligibility for the SIJ benefit. In ¶ 23 of the Settlement the parties agreed as follows:
"Defendant USCIS shall not deny a class member’s application for SIJ classification or SIJ-based adjustment of status on account of age or dependency status, if, at the time the class member files or filed a complete application for SIJ classification, he or she was under 21 years of age or was the subject of a valid dependency order that was subsequently terminated based on age. ..."
For the first two and one-half years following approval of the Settlement, CIS practice conformed with the above provisions: i.e., the agency regularly granted class members SIJ benefits even if they were no longer subjects of valid dependency orders at the time they filed Form I-360 SIJ applications provided they were under 21. Recently, however, CIS changed course; the agency now demands that class members be both under 21 years of age and the subject of valid dependency orders at the time they apply for SIJ benefits.
In imposing these conjunctive SIJ eligibility requirements, CIS has unilaterally jettisoned the disjunctive the Settlement posits, and in so doing clearly breaches the agreement. In 2014, the Center filed a Motion to Enforce the Settlement and enjoin CIS to resume complying with ¶¶ 23 and 24 of Settlement and to make whole class members aggrieved by past violations of those provisions.
On March 4, 2015, after several months of negotiations, the Center entered into an agreement with DHS bringing the agency into compliance with the Perez-Olano Settlement Agreement we had previously reached with the Government allowing immigrant children found to be abused, abandoned or neglected by state courts to legalize their status and avoid deportation even if their state court orders expired when they turned 18 years of age. The Center agreed to withdraw its pending motion for class-wide enforcement of the Perez-Olano settlement and DHS has agreed to comply with the following modified policies (click here to read the complete Stipulation)
— The U.S. Citizenship and Immigration Service (USCIS) will not deny, revoke, or terminate immigrant children's applications for Special Immigrant Juvenile (SIJ) classification or applications for adjustment of status if, at the time of filing an application for SIJ classification (Form I-360), (1) the minor is or was under 21 years of age, unmarried, and otherwise eligible for SIJ status, and (2) the class member either is the subject of a valid state court dependency order or was the subject of a valid dependency order that was previously terminated based on age prior to the filing of the application for SIJ status or adjustment of status based on an approved SIJ application.
— Class members whose SIJ applications were previously wrongfully denied, revoked or terminated because they were no longer the subjects of valid state court dependency orders at the time their SIJ applications or applications for legalization of status will not have to pay any additional fees for re-opening and re-adjudication of their previously denied applications.
— USCIS will notify all persons whose SIJ applications or applications for adjustment of status were denied from May 13, 2005, to the present, by certified mail to them and their counsel, that their previously denied applications may be re-opened and re-adjudicated without fee if those applications were previously denied on the ground, in whole or in part, that the applicant’s state court dependency order had expired at the time of application for SIJ status or adjustment of status.
--- Upon reopening these cases, USCIS will approve those applications for SIJ classification or SIJ-based adjustment of status that are approvable on the basis of the existing administrative record: that is, without the class members’ submitting further evidence or information. If the reopened applications are not approvable on the basis of the existing administrative record, USCIS must notify applicants that their applications have been reopened and request such additional evidence or information as the agency deems necessary.
--- USCIS will forward notice of the agreement to its list of community-based organizations and stakeholders. USCIS must distribute the agreement and a policy memorandum to DHS officers, agents and employees who adjudicate applications for SIJ classification or SIJ-based adjustment of status, and instruct them to adjudicate pending and future applications for SIJ classification and SIJ-based adjustment of status in accordance with the Agreement.
Class members previously denied SIJ status or adjustment of status because their state court dependency orders had expired, or their lawyers, have until , to advise USCIS that they request USCIS to reopen and re-adjudicate previously denied applications for SIJ classification or SIJ-based adjustment of status pursuant to this Agreement.
For questions or more information, please contact the Center at (213) 388-8693 x 305 or email: email@example.com or firstname.lastname@example.org
Instructions and Form for Requesting Specific ConsentU.S. Department of Health and Human Services ORR Program Instructions for Specific Consent Requests
U.S. Department of Health and Human Services ORR Request for Specific Consent to Juvenile Court Jurisdiction Form (Specific Request Consent Form)